Rising from the ashes: Suo motu criminal revision cases taken up by the Madras High Court

A slew of orders that were passed recently by Justice Anand Venkatesh of the Madras High Court suo motu resurrecting corruption cases of some politicians of the State from the ashes, has indeed stirred a hornet’s nest.

There is one school of thought which holds the view that the judge should not have dug out the muck and caused embarrassment to the institution, and ought to have let bygones be bygones. There are others who say that the judiciary has gone up in the esteem of the discerning public by demonstrating that it would not hesitate to crack the whip even against its own erring members. Be that as it may, we may now briefly notice the facts of each of these six cases.

1) O Panneerselvam

Paneerselvam was a member of the AIADMK and was a Minister from May 2001 to May 2006. He was, for a brief period, Chief Minister of Tamil Nadu. After the DMK came to power in May 2006, the Directorate of Vigilance and Anti-Corruption (DVAC) registered an FIR against him on September 7, 2006 and after completing the investigation, filed a charge sheet in the Special Court on July 30, 2009 alleging that he and his family members have assets 379% times disproportionate to their known sources of income.

After the AIADMK returned to power in 2011, the DVAC filed an application under Section 173(8) of the Code of Criminal Procedure (CrPC) for further investigation in the Special Court. After obtaining permission, it conducted a sham further investigation and filed a closure report exonerating all the accused, based on which the prosecution was happily closed by the Special Court.

2) B Valarmathi

Valarmathi was a Minister in the AIADMK government from May 2001 to May 2006 and when the DMK came to power in 2006, an FIR was registered against her, pursuant to which a charge sheet was filed in the Special Court against her and her family members for holding assets disproportionate to their known sources of income. While this case was pending, the AIADMK came to power in 2011, after which the DVAC filed a petition under Section 173(8) CrPC for further investigation. The Special Court allowed this petition, and the DVAC quickly got down to business and filed a closure report completely contrary to what was filed earlier during the DMK regime. The Special Court once again accepted the closure report and closed the case.

3) K Ponmudi

Ponmudi was a Minister in the DMK government between May 1996 and May 2001. When the AIADMK came to power in 2001, an FIR was registered by the DVAC, and a charge sheet was filed against him and his relatives for owning assets disproportionate to their known sources of income. The Special Court took cognizance and the usual spate of discharge petitions followed. Charges were eventually framed against him by the Special Court in 2015. The prosecution examined witnesses and the trial was completed halfway. In 2021, the DMK came to back power and Ponmudi became a Minister. As there was a general direction from the Supreme Court to all trial courts to expedite the cases of politicians, the Special Judge addressed a letter to the High Court seeking permission to hold special sittings during the summer recess in May 2022 to complete the trial. The request of the Special Judge was rejected by the High Court in June 2023, after the vacation was over, and subsequently, the case was administratively transferred by the district portfolio judges and the Chief Justice to a designated court in Vellore district. The new Judge took up the case at a break-neck speed, heard arguments on June 23, 2023, acquitted the accused on June 28, and retired on June 30.

4) KKSSR Ramachandran

Ramachandran was a Minister in the DMK government between May 2006 and May 2011. When the AIADMK came to power in 2011, an FIR was registered and a charge sheet for assets disproportionate to his known sources of income was filed in the Special Court against him and his family members. There were multiple challenges made by him at the interlocutory stages and the trial was successfully prolonged till May 2021, when the DMK came to power, and Ramachandran became a Minister. While his discharge petitions were under consideration, the DVAC filed an application under Section 173(8) CrPC. for further investigation and after obtaining orders from the Special Court, conducted some investigation and filed a “final closure report”, contradicting its earlier investigation report, and giving the accused a clean chit. The Special Court accepted the “final closure report”, and the accused were discharged on July 20, 2023.

5) Thangam Thennarasu

Thennarasu was a Minister in the DMK government between May 2006 and 2011. When the AIADMK came to power in 2011, an FIR was registered which culminated in a charge sheet against him and his wife for holding assets disproportionate to their known sources of income. The usual spate of discharge petitions followed. COVID-19 intervened and helped in prolonging the matter. Ultimately, in May 2021, the DMK came to power, and Thennarasu became a Minister. The DVAC filed an application under Section 173(8) CrPC for further investigation, which was allowed by the trial court, pursuant to which a closure report was filed contradicting its earlier investigation report, and giving the accused a clean chit. The trial court accepted the report and discharged the accused on December 12, 2022.

6) Periasamy

Periasamy was a Minister in the DMK regime from May 2006 to May 2011. During his tenure, he is said to have allotted a plot to one Ganesh. Even before the allotment was made, Ganesh entered into agreements to sell this plot for little more than a crore. The plot was later sold and the proceeds were pocketed. When the AIADMK came to power in 2011, an FIR was promptly registered against Periasamy and a charge sheet was filed against him and others for offences under the Prevention of Corruption Act in the Special Court, after obtaining sanction under Section 19 from Dhanapal, the then Speaker of the Assembly when the AIADMK was in power. It may be necessary to state here that at the time of filing the charge sheet, Periasamy was only an opposition MLA and not a Minister.

Periaswamy filed a discharge petition in the trial court contending that the Speaker of the Assembly was not competent to grant sanction. This petition was dismissed, and the order was confirmed by the High Court and the Supreme Court. The DMK came to power in 2021 and Periasamy filed an application under Section 19 to discharge him from the prosecution on the ground that the Speaker had no authority to grant sanction. The DVAC filed a counter to this petition, in which it did not mention a word about the earlier round of litigation in the discharge petition. The Special Court did not find time to peruse its own records and instead discharged Periasamy on March 17, 2023.

Thus, six criminal prosecutions were successfully torpedoed ingeniously, thanks to the complicity of the stakeholders of the criminal justice system and their betrayal of the common man, for whose protection all these institutions purportedly exist.

The following are points to ponder over.

The DMK launched prosecutions during their period in power through the DVAC against AIADMK Ministers O Panneerselvam and Valarmathi. However, when these prosecutions were scuttled when the AIADMK came to power, why wasn’t there any noise from the DMK? It is common knowledge that the DMK is a cadre-based party with a strong legal team which ensured that their bête noire, J Jayalalithaa, was not able to escape the clutches of the law. Why didn’t they follow up on the scuttling of cases vis-à-vis Panneerselvam and Valarmathi? This is because the tactic of filing petitions under Section 173(8) CrPC and scuttling prosecutions when the opposition came to power had become an institutionalized pattern in the State. Criminal cases against former Ministers were meant to last till such time their parties remained in the opposition.

The same is true of the AIADMK as well. This explains why the AIADMK maintained a stoic silence when Periasamy, KKSSR Ramachandran, Ponmudi and Thangam Thennarasu wriggled out of the prosecutions against them. The moral of the story is “You scratch my back and I scratch yours and let us together engage in shadow boxing politically.”

Politicians across the globe would never want an independent and strong judiciary. In India, they tasted the bitterness of the independence of the judiciary in 1965 in an interesting case, popularly referred to as the Empire Conspiracy case (Sardar Sardul Singh Caveeshar v State of Maharashtra).

One Lala Shankarlal, a political leader and Vice-President of the Forward Bloc, was controlling the block shares of Tropical Insurance Company. He wanted to buy the block shares of Jupiter Insurance Company, which was prosperous. Since he did not have the money to buy these, he conspired with others, including one Damodar Swarup, a political heavyweight, to manipulate the records of Jupiter Insurance Company, to make it appear as if the sale consideration for the purchase was credited into Jupiter Insurance Company’s account. On these allegations, nine accused, including Damodar Swarup, were prosecuted for offences under Section 120-B read with 409 of the Indian Penal Code (IPC).

This case generated a lot of adverse publicity in the press because the accused, including Damodar Swarup, were big politicians connected to Congress leaders. The Congress Party felt embarrassed. Pandit Nehru was the Prime Minister then and Sri Prakasa was the Governor of Bombay. Damodar Swarup was very close to both of them. The Congress Party did not attempt to sabotage either the investigation or the trial, and instead, Pandit Nehru and Sri Prakasa decided to appear in the Sessions Court as defence witnesses to speak about the sterling character of Damodar Swarup. The Sessions Judge did not feel overawed when the Prime Minister and former Governor testified before him. By a well-considered judgment, the Sessions Judge convicted Damodar Swarup and sentenced him to undergo five years of rigorous imprisonment. A few accused were also acquitted.

The State of Bombay promptly filed appeals against the acquittals, and Damodar Swarup and the others who were convicted, also filed appeals in the Bombay High Court. The High Court reversed the acquittals and confirmed the conviction and sentence imposed on Damodar Swarup. All the convicts filed appeals in the Supreme Court which were heard by a Bench of Justices Subba Rao, Raghubar Dayal and JR Mudholkar. The apex court upheld the convictions, while observing,

“Mr Sri Prakasa, in his evidence, said that from what he knew of Damodar Swarup for the last 32 years, he was a person of high integrity, noble character and of patriotic fervor. Mr Jawaharlal Nehru said in his evidence that he knew Damodar Swarup for nearly 40 years and that he had known him in the political field as a very earnest and enthusiastic worker and that he had often been in prison with him and that he always had respect for his sincerity...The evidence of these witnesses establishes that in their opinion the accused was a man of integrity, sincerity and simplicity. The question is, what is the evidentiary value of good character of an accused in a criminal case..."

This judgment, in my opinion, was a watershed moment in the annals of our judiciary as it made politicians sit and think about the dangers of having an independent and fearless judiciary. The framers of the Constitution, especially, Dr Ambedkar, were very clear in their mind that judges should not be at the mercy of the legislature or the executive. Therefore, they made elaborate provisions in the Constitution itself to ensure that the pyramid structure of the judiciary remains independent and stands as one of the pillars of the Constitution.

They empowered the High Court to make appointments to the district judiciary and have administrative control over it. They would have never dreamt that this administrative control would be used to pass veiled judicial orders transferring cases in secrecy. They believed that Indian judges would emulate the high traditions of their English heritage in upholding the rule of law. As could be seen in the Empire Conspiracy case, judges from the trial court to the Supreme Court exhibited remarkable independence.

It is said that when Pandit Nehru was contemplating overlooking Justice Patanjali Sastri for the post of Chief Justice of India, all the others said that they would put in their papers. Indira Gandhi adopted a confrontational approach to the judiciary by supersession and transfers. She knew that judges are, after all, ordinary mortals, harbouring great ambitions and suffering upward movement syndrome. That is why the whole Supreme Court did not resign either in the first supersession in 1971 or in the second one in 1975. Post-Indira Gandhi, the executive became weak and the judiciary gathered the courage to conceive and implement the Collegium system of appointments.

Present-day politicians are not interested in confrontation with the judiciary, because most of them are businessmen-turned-politicians. Politics is business for them now. They need money to give to the voters. They do not want to be publicly perceived as destroyers of the judiciary. The Bar and the Bench was earlier seen as a monolith and was found to be a stumbling block for the politicians. They, therefore, conceived a brilliant strategy: indiscriminately increase the size of the Bar and the Bench, throughout India and set in motion Parkinson’s third law to follow suit -"Expansion leads to complexity and complexity to decay”.

What is the justification that is being touted by the politicians for expanding the judiciary? Burgeoning cases. The truth is, Indians are not litigious people, but the overarching power which the executive wields in every walk of life, is forcing ordinary people to seek legal protection.

Why does the DVAC bend backward and forward? The Indian police force was a creature of the colonial Police Acts. These Acts are structured so as to reinforce the functioning of the police under the command of the government of the day. The Englishmen knew very well about the unflinching loyalty that would be shown by Indians to authority. That is why General Dyer confidently ordered his Indian sepoys to shoot at the unarmed and peaceful gathering at Jallianwallah Bagh. At the time of independence, Sardar Patel felt that the police should be in the hands of the government to protect the Indian Union against secessionists. Today, no political party would be ready to give up its grip over the police force and make it truly independent.

This was noticed by the Supreme Court in Prakash Singh v. Union of India, in which directions were issued to the government to at least de-link criminal investigation from law and order policing and make it independent. This division has not seen the light of the day. The police in India are trained to do the bidding of the government of the day and protect it from the people. The impression one gets is that the police in India are for the politicians and not for the people. As wryly commented by George Orwell in his book Animal Farm,

“All animals (men) are equal, but some animals (men) are more equal than the others.”

Finally, the orders of Justice Anand Venkatesh have sent two messages loud and clear: the Madras High Court is not a basket full of bad apples as is made out to be. The institution still stands on the shoulders of some conscientious judges with uncompromising integrity.

The message for politicians is found in the poem To Mouse by Robert Burns, which contains the following lines:

"The best laid schemes of mice and men,

Go often awry

And leave us nothing but grief and pain,

For promised joy."

Justice PN Prakash is a former judge of the Madras High Court.